Title
Dept/ Agency: Economic & Housing Development
Action: ( ) Ratifying (X) Authorizing ( ) Amending
Purpose: Settlement of Civil Litigation
Docket No.: ESX-L-2957-15
Claimant: Springfield Avenue, LLC
Claimant's Attorney: Chiesa Shahinian & Giantomasi, PC
Attorney's Address: One Boland Drive, West Orange, New Jersey 07052
Settlement Amount: N/A
Funding Source: No Funding Required
Additional Comments:
Body
WHEREAS, Springfield Avenue Retail, LLC is the owner of land in the City of Newark designated as Block 236, Lot 1.06 on the Tax Map of the City of Newark (the “Property”); and
WHEREAS, on November 20, 2014, Springfield Avenue Retail, LLC submitted an application to the Central Planning Board of the City of Newark (“Planning Board”) for amended final site plan approval with variances (“Amended Application”); and
WHEREAS, the Amended Application sought to reduce the square footage of a fast food restaurant with drive-thru (“Restaurant”), which was approved by the Planning Board and memorialized in a resolution dated on August 13, 2013 (“2013 Approval”), by approximately 94 square feet or 2% of the overall square footage and also sought certain variances related to signage; and
WHEREAS, notices were published in the Star-Ledger on February 13, 2015 and mailed to all property owners within a 200 foot radius of the Property advising that the Amended Application was going to be considered by the Planning Board in accordance with N.J.S.A. 40:55D-12; and
WHEREAS, after carrying the Amended Application from its initial hearing date of February 23, 2015, at the request of the public, the Planning Board conducted public hearings on the Amended Application over the course of two hearings held on March 9, 2015 and March 23, 2015 (“Public Hearings”); and
WHEREAS, at the conclusion of the March 23, 2015 Planning Board meeting the Planning Board voted to unanimously deny the Amended Application based on hours of operation, which decision was memorialized in a resolution adopted on April 27, 2015; and
WHEREAS, on May 5, 2015, Springfield Avenue Retail, LLC filed a Complaint in Lieu of Prerogative Writs in the Superior Court of New Jersey, Law Division, Essex County, bearing the caption Springfield Avenue Retail, LLC v. City of Newark and Central Planning Board of the City of Newark, Docket Number ESX-L-2957-15 (“Lawsuit”), challenging the denial of its Amended Application and alleging certain actions against the City of Newark, including violations of Springfield’s constitutional and civil rights; and
WHEREAS, thereafter, the City of Newark, Planning Board and Springfield Avenue Retail, LLC (collectively the “Parties”) subsequently engaged in extensive settlement negotiations in order to resolve the Lawsuit; and
WHEREAS, as a result of the aforementioned settlement negotiations, and in order to fully and finally settle the Lawsuit, the Parties propose to enter into a Settlement Agreement (“Settlement Agreement,” attached hereto as Exhibit A); and
WHEREAS, the Settlement Agreement requires the Planning Board to conduct a public hearing, upon proper notice, and consider the approval of the Amended Application as submitted and modified during the course of the Public Hearings upon the condition that the Restaurant shall close its inside dining at 1:00 a.m. and close its drive-thru operation at 1:00 a.m. The Restaurant shall be allowed, but not required, to reopen at 5:30 a.m., as fully detailed in Exhibit A; and
WHEREAS, in the event that the Planning Board shall vote to approve the Amended Application with said condition, the Planning Board shall adopt a memorializing resolution setting forth its findings and approval within twenty (20) days of its vote on the Amended Application (“Approval Resolution”); and
WHEREAS, conditioned upon the final, non-appealable adoption of the Amended Application by the Planning Board, Springfield shall dismiss with prejudice its lawsuit against all Parties; and.
WHEREAS, the Municipal Council of the City of Newark has reviewed and duly considered said Settlement Agreement and considers that the resolution of the Lawsuit on its terms is in the public interest.
NOW, THEREFORE, BE IT RESOLVED, BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY, THAT:
1. The Mayor, and or his designee, the Deputy Mayor/Director of the Department of Economic and Housing Development is hereby authorized to enter into and execute the Settlement Agreement, in the form as attached as Exhibit A hereto.
2. The Mayor, staff and consultants of the City are hereby authorized to take all actions which are necessary and appropriate to implement this Resolution and to effectuate the terms of the Settlement Agreement.
3. The Deputy Mayor/Director of the Department of Economic and Housing Development shall file a fully executed copy of the Settlement Agreement with the City Clerk.
4. This Resolution shall take effect immediately.
STATEMENT
This Resolution authorizes the execution of a Settlement Agreement to resolve litigation against the City of Newark and the Central Planning Board of the City of Newark captioned Springfield Avenue Retail, LLC v. City of Newark and Central Planning Board of the City of Newark, Docket No. ESX-L-2957-15.